ILLINOIS OFFICIAL REPORTS

Appellate Court

Wells v. St. Bernard Hospital, 2013 IL App (1st) 113512

Appellate Court

Caption

SALLIE WELLS, as Administrator of the Estate of Juanita Wells,

deceased, Plaintiff-Appellant, v. ST. BERNARD HOSPITAL, SUNT

WANA, M.D., EUGENE CHUKEDEBULU, M.D., ADEL ZAYYAD,

M.D., MINETTE M. LUCRO, R.N., and CATHERINE MONCLAR,

M.D., Defendants (Steinberg, Polacek and Goodman, AttorneysforSallie

Wells, Appellee).

 District & No. First District, Sixth Division

Docket No. 1-11-3512

Filed March 29, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In an appeal from the settlement of a wrongful death and survival action

in which plaintiff’s counsel was awarded enhanced fees pursuant to

section 2-1114 of the Code of Civil Procedure, the denial of plaintiff’s

section 2-1401 petition to vacate the award of enhanced fees was upheld

over plaintiff’s contentions that an evidentiary hearing was not held and

that the trial judge applied the wrong standard, since plaintiff waived an

evidentiary hearing by failing to present any evidence at the hearing on

the petition that would refute counsel’s claim that extraordinary services

were performed and enhanced fees were warranted, and further, the result

would have been the same, even if the award were reviewed under an

abuse of discretion standard, rather than the section 2-1401 standard.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-L-5863; the Hon.

William D. Maddux, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Robert F. Harris, Public Guardian, of Chicago (Charles Perez Golbert,

Kass A. Plain, and Mary Brigid Hayes, of counsel), guardian ad litem.

Bruce D. Goodman and BradleyD. Steinberg, both of Steinberg, Polacek

& Goodman, of Chicago, for appellee.

Panel JUSTICE GORDON delivered the judgment of the court, with opinion.

Justices Hall and Reyes concurred in the judgment and opinion.

OPINION

¶ 1 After plaintiff Sallie Wells’ adult daughter, Juanita Wells (decedent), died at defendant

St. Bernard Hospital, plaintiff retained counsel to file a wrongful death and survival action

against St. Bernard and the health providers for their care and treatment of decedent, arguing

that defendants’ medical malpractice caused decedent’swrongful death. The case settled, and

plaintiff’s counsel petitioned the trial court for enhanced attorney fees pursuant to section 2-

1114 of the Code of Civil Procedure (735 ILCS 5/2-1114 (West 2008)). The trial court

granted counsel’s petition and awarded plaintiff’s counsel $56,850 in enhanced fees.

¶ 2 Four months after the trial court awarded the enhanced fees, Dr. Geoffrey Shaw, a boardcertified psychiatrist, examined plaintiff and determined that she suffers from a “major

psychiatric illness (most likely [s]chizophrenia)” and is developmentally disabled and thus

was disabled at the time of the settlement and the petition for enhanced fees. The office of

the public guardian (hereafter Public Guardian) was appointed as the temporary guardian of

plaintiff, and the court declared her to be a disabled person. The Public Guardian filed a

section 2-1401 petition to vacate the enhanced fee award, arguing that plaintiff lacked the

capacity to consent to her counsel’s petition for enhanced fees. 735 ILCS 5/2-1401 (West

2008). The trial court denied the petition, and this appeal followed. We affirm.

¶ 3 BACKGROUND

¶ 4 I. The Wrongful Death and Survival Action

¶ 5 Plaintiff Sallie Wells gave birth to two children: Michael Wells (Michael), born in 1968,

and the decedent, Juanita Wells. Both children were adults at all relevant times during the 1

events of this case. Both children were taken from plaintiff at birth and placed into a foster

care system. Michael was raised by Julia Mayes (Julia), his aunt and plaintiff’s sister, and the

decedent was raised by Estelle White, a family friend. Plaintiff receives only public aid and

social security disability.

Juanita Wells’ age is not contained in the record in this case.

1

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¶ 6 On May 29, 2006, the decedent was taken to St. Bernard Hospital by ambulance and

hospitalized, complaining of chest pains. There was an issue as to whether the onset of her

symptoms was caused by a suicide attempt. Decedent passed away two days later during her

hospitalization. On July 10, 2006, plaintiff signed a retainer agreement with attorney James

Gumbiner, to represent her in a medical malpractice claim against defendants for their

negligent care and treatment of decedent during her hospitalization at St. Bernard. The

agreement included a fee structure clause, whereby Gumbiner would receive “[t]hirty three

and one-third (33/1/3) percent of the first $150,000 [recovered], twenty five (25%) percent

of the next $850,000 of the sum recovered, twenty (20%) percent of any additional amount

over $1,000,000 of the sum recovered.” Furthermore, the agreement stated that “[t]he court

may review contingent fee arrangements for fairness. In special circumstances, where an

attorneyperforms extraordinary services involving more than usual participation in time and

effort the attorney may apply to the court for approval of additional compensation.” The

agreement also included a provision which states that Gumbiner “may associate other

attorneys with him in the prosecution of this case, if, in his judgment, it would be beneficial

to the case to associate with other attorneys.” The agreement further stated:

“[I]n the event work is done on [the] case by such other attorneys, the other attorneys will

be compensated either by direct payment by Mr. Gumbiner on an hourly basis or by

receiving a percentage of the fee. In no event will [plaintiff] be required to pay any fees

to such other attorneys directly, or in excess of the amounts referred to in this Agreement.

There will be no extra charge for the services of such other attorneys; the other attorneys

will be paid from the fee referred to above.”

¶ 7 Gumbiner referred the case to the law firm of Steinberg, Polacek & Goodman, now

known as Steinberg, Goodman & Kalish (SGK, the appellees in this appeal). The defendant

health care providers are not parties to this appeal. In May 2008, prior to filing the complaint,

SGK petitioned the probate division to appoint plaintiff as the administrator of decedent’s

estate, which was granted.2

¶ 8 On May29, 2008, plaintiff filed the complaint for medical malpractice in the circuit court

of Cook County. On February 19, 2009, after defendants subpoenaed decedent’s prior

medical records, plaintiff filed a motion for a protective order to prevent the receipt,

disclosure, use, or dissemination of decedent’s mental health records, pursuant to the Mental

Health and Developmental Disabilities Confidentiality Act (Mental Health Act). 740 ILCS

110/1 et seq. (West 2008). The motion stated that decedent had received mental health care

from numerous health care providers prior to her hospitalization on May 29, 2006. Plaintiff

argued that decedent’s mental health records were privileged, because the Mental Health Act

prohibits the nonconsensual disclosure of mental health records except under certain

circumstances. Plaintiff argued that no such circumstances existed in this case. On June 16,

2009, the trial court held a hearing on plaintiff’s motion and granted the protective order after

SGK reviewed all of the records and formulated objections to their use.

Attorney Ronald Kalish testified during his discovery deposition that the omission of 2

Michael from the petition as an heir was a “typographical error.”

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¶ 9 On March 4, 2010, plaintiff filed a petition to approve a settlement in the case in the trial

court in exchange for a release of all claims for $825,000. Plaintiff received 96.37% and

Michael received 3.63% of the net settlement.

¶ 10 The petition also included a request for enhanced attorney fees of $56,850, pursuant to

section 2-1114(c) (735 ILCS 5/2-1114(c) (West 2008)). Under the medical malpractice

statute, attorneys may recover fees of one-third of the first $150,000 of the award and onefourth of the next $850,000. Section 2-1114 allows an attorney to recoup additional fees if

“an attorney performs extraordinary services involving more than the usual participation in

time and effort.” 735 ILCS 5/2-1114(c) (West 2008). The petition stated that the special

circumstances meriting enhanced fees include but are not limited to the following:

“the difficulty in prosecuting the case, the nature of the defenses to the case, the

difficulties in obtaining a favorable medical review as to the liability issues involved,

creating the opportunity to settle the case at this time without further delay. In particular,

this case involved unique issues of privilege under the Illinois Mental Health Act which

were vigorously litigated and researched over a period of approximately one year. ***

In connection with this issue, Plaintiff’s counsel reviewed personally approximately

twenty-five thousand pages of medical records from approximately thirty different

admissions to various hospitals in the Chicagoland area. *** The effects of these

extraordinary efforts by Plaintiff’s counsel had a positive effect on the settlement value

of the case.”

The petition requested that attorneys Gumbiner and SGK, in exchange for their services,

should receive fees of $275,000, or one-third of the total settlement amount. The petition

stated that plaintiff had been made aware of the circumstances of the case and agreed that

fees of $275,000 were fair in light of the special circumstances required by the case. After

payment of fees, expenses, and the Illinois Department of Healthcare and Family Services

public aid lien, plaintiff received $513,154.08 and plaintiff’s son Michael received

$29,947.50. Attached to the petition was a statement signed by plaintiff and Michael

asserting they had read and approved the settlement petition, including the provision for

enhanced fees. Also attached to the settlement petition was a list of enumerated expenses,

totaling $3,898.42.

¶ 11 That same day, March 4, 2010, the trial court entered an order approving the settlement.

The trial court found that the settlement amount was fair and reasonable, that the attorneys

were entitled to enhanced fees of $56,850, which made a total fee of $275,000, and

reimbursement of expenses of $3,898.42. The trial court approved apportionment of 96.37%

to plaintiff and the balance of 3.63% of the settlement to Michael.

¶ 12 II. Petition to Vacate Enhanced Fees

¶ 13 On May 12, 2010, plaintiff’s sister and the aunt who raised Michael filed a petition in the

probate division seeking that Michael be adjudged a disabled person. Dr. Frances Wong, a

licensed physician, examined Michael and executed a written report finding that Michael is

diagnosed with “mental retardation.” Dr. Wong’s report opined that Michael can perform

“activities of daily living independently, but requires others to help him with critical thinking

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decisions” and “needs supervision with financial decisions.” The probate judge found

Michael a disabled person and appointed his aunt as his guardian.

¶ 14 The probate judge also appointed an attorney to serve as guardian ad litem (GAL) for

Michael’s estate and ordered the GAL to review the settlement agreement. The GAL

submitted a report opining that Michael was, both at the time of the settlement and at the

present time, incapable of making financial decisions and thus incapable of agreeing to any

enhanced fees.

¶ 15 On July 8, 2010, Dr. Geoffrey Shaw, a board-certified psychiatrist, examined plaintiff to

determine her capacity to make her own personal and financial decisions. The examination

resulted from a claim that plaintiff had been financially exploited following her receipt of

money from the settlement. After receiving the settlement funds, plaintiff authorized three

cashiers checks made payable to three separate people, Bruce Staggers, Jimmie Cook, and

Martin Cosby, in the amounts of $10,000, $96,131, and $30,000, respectively. Plaintiff was

unable to explain the reasons for gifting the cashiers checks to the payees. When asked about

Staggers, Cook, and Cosby, she referred to them as “crooks.” She was also unable to recall

to Dr. Shaw the amount awarded to her in the settlement.

¶ 16 Dr. Shaw stated in his report that plaintiff has “a long history of Psychiatric Illness,” was

currently under the care of a psychiatrist, and that she was taking psychotropic medications.

Plaintiff displayed prominent involuntary facial movements, known as tardive dyskinesia,

which are indicative of the chronic administration of antipsychotic medications. Dr. Shaw

opined that, “[u]pon questioning, it also became very apparent that [plaintiff] is also

Developmentally Delayed.” Dr. Shaw opined that plaintiff suffers from a “major psychiatric

illness (most likely Schizophrenia) and is also Developmentally Delayed.” Dr. Shaw further

opined that although plaintiff “functions relatively well in her surroundings and appears to

have a reasonably good quality of life,” her judgment is impaired due to her developmental

delay and “chronic” psychiatric illness. Dr. Shaw opined that plaintiff has an “extremely

limited concept of finances,” and that although she can, with support, reside alone, she

requires assistance to ensure her basic needs, such as having adequate food and shelter, are

met and requires access to ongoing medical and psychiatric care. Dr. Shaw opined that, “[i]n

the area of financial decisions [plaintiff] is extremely vulnerable to exploitation.” In sum, Dr.

Shaw opined, beyond a reasonable degree of medical and psychiatric certainty, that plaintiff

suffers from developmental delay and chronic psychiatric illness, and is “totally incapable

of making her own financial decisions,” but is “partially capable of making her own personal

decisions.”

¶ 17 Following Dr. Shaw’s report, the office of the public guardian petitioned to be appointed

as plaintiff’s guardian to investigate the claim of financial exploitation and protect her assets.

On August 18, 2010, the probate judge entered an order appointing the Public Guardian as

plenary guardian of plaintiff’s estate and limited guardian of plaintiff’s person. In the order,

the probate judge found that plaintiff is a disabled person, lacks some, but not all,

understanding or capacityto make or communicate responsible decisions concerningthe care

of her person, and is “[t]otally unable to manage her estate or financial affairs.”

¶ 18 On March 15, 2011, the Public Guardian filed a section 2-1401 petition in the case at bar

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to vacate the enhanced attorney fees awarded to Gumbiner and SGK. 735 ILCS 5/2-1401

(West 2008). The trial judge, John Ward, had by this time retired, and the case was assigned

to Judge William Maddux, the presiding judge of the law division.

¶ 19 The petition to vacate the enhanced fees stated the following: At the time plaintiff was

presented with the petition to settle the case, she was receiving public aid and social security

disability. After plaintiff approved the petition, she was examined by Dr. Shaw, who

determined that she was incapable of making financial decisions. On information and belief,

plaintiff’s mental capacity as determined by Dr. Shaw in July of 2010 was the same as it was

four months earlier on the date of the settlement. SGK had recommended to plaintiff that

they establish a special needs trust for her. However, no special needs trust was ever

established. The petition claimed that plaintiff had established her mental incapacity to SGK

when plaintiff gave an answer to interrogatories regarding decedent’s heirs, claiming that she

was decedent’s sole heir, when decedent had a brother.

¶ 20 The petition to vacate further alleges that the circumstances of the case were not

extraordinary. Plaintiff’s counsel settled the case 21 months after it was filed without a single

deposition being taken, and only two dispositive motions were filed during the pendency of

the suit. Plaintiff’s counsel testified that he reviewed 25,000 pages of medical records, but

they could not be produced because they had been destroyed. The Public Guardian asserted

that plaintiff’s meritorious claim to vacate the enhanced fee is that plaintiff and Michael were

both mentally disabled and could not have consented to the enhanced fees, and that SGK was

not entitled to any enhanced fees. The Public Guardian also asserted that it had exercised due

diligence under the circumstances.

¶ 21 On June 14, 2011, SGK filed motions under sections 2-615 and 2-619 to dismiss the

section 2-1401 petition to vacate the enhanced fee order. 735 ILCS 5/2-615, 2-619 (West

2008). The motions argued that the petition did not properly assert that plaintiff has a

meritorious claim or exercised due diligence in discovering the claim, that the petition failed

to satisfy the pleading requirements of section 2-1401, and that plaintiff improperly asked

the trial court to relitigate the issue of enhanced fees based on events that occurred after the

order granting the enhanced fees had been entered. In an affidavit attached to the motion,

attorney Ronald Kalish of SGK stated that he personally reviewed 25,000 pages of

decedent’s medical records, which were kept in a locked conference room in Judge Ward’s

courtroom. Kalish indicated that after the trial court granted the settlement petition, the

records were destroyed, due to the “privileged and sensitive nature of the records.” Kalish

stated that during the pendency of the case, plaintiff “actively participated in all aspects of

the case, either by telephone or through personal visits to our office.” Kalish stated that he

visited plaintiff’s home on “one or two occasions,” and observed that she was “capable of

reasonablymaintaining her apartment and managing her personal affairs.” Kalish stated that

plaintiff expressed an understanding about the various aspects of the litigation process,

including distribution of the proceeds, and that he did not observe anything about plaintiff

that would “provide a basis to suggest that she was incompetent to make any decisions up

to the time of distribution.” Kalish stated that plaintiff specifically agreed to allow SGK to

petition for enhanced attorney fees, and that she believed enhanced fees were fair and

reasonable. Kalish stated that plaintiff had borrowed money from a company in the business

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of loaningmoney to plaintiffs who have pending personal injury lawsuits, that plaintiff made

the decision to borrow the money on her own, and that, when Kalish found out about the

loan, plaintiff expressed to him an understanding of “the cost of the loan, the risk, and the

obligation to pay it off at the conclusion of the case.” Finally, Kalish stated that when

plaintiff decided to settle the case, “she expressed an understanding of the consequences of

receiving the settlement proceeds, and expressed a desire to go off public aid, not create a

special needs trust, and not structure the settlement.” Judge Maddux entered an order

continuing the section 2-1401 petition and the motions to dismiss to October 19, 2011.

¶ 22 In the interim, the discovery deposition of attorney Ronald Kalish was taken on

September 19, 2011, and was attached to plaintiff’s response to SGK’s motion to dismiss.

Kalish testified that he joined the firm in 1997 and in three to four years became a partner.

He is a litigator and SGK does primarily personal injury and medical malpractice litigation,

and somewhere less than 50% of this work is in the medical malpractice arena. This case was

referred to their office by attorney James Gumbiner. Prior to petitioning the probate division

of the circuit court of Cook County, Kalish obtained and received decedent’s medical records

for the hospitalization in question, met and talked by phone with plaintiff and her son

Michael on a number of occasions discussing the progress of the case, had discussions with

the attorneyrepresenting St. Bernard Hospital, prepared the complaint and medical affidavit,

had discussions with the medical consultant that signed the affidavit and another consultant

who provided a negative opinion, had interoffice discussions with his partner Bruce

Goodman, performed research on medical and related issues, and had numerous pretrials and

settlement discussions with the attorneys for the defendants, as well as many settlement

discussions with plaintiff and her son Michael. There were no time records kept, no

depositions taken prior to settlement, and only a few motions before the court.

¶ 23 However, Kalish testified to spending hundreds of hours reviewing over 25,000 pages

of decedent’s prior medical records in the chambers of Judge John Ward. Defendants

subpoenaed the records from various hospitals, including Northwestern, Mercy, Mt. Sinai,

and Jackson Park. Kalish objected to the records as privileged under the Mental Health Act.

Judge Ward had authorized an in camera procedure whereby Kalish was allowed to review

all of decedent’s prior mental health records on prior hospital stays in order for Kalish to

determine whether these records would be objected to based on privilege under the Mental

Health Act. Kalish sought a protective order against defendants so that they could not use the

records against the decedent in the medical malpractice case that is the subject of the case

at bar. After Kalish reviewed each page of the records, Kalish prepared a sampling of the

contents of the records and prepared a brief for the trial court, and the judge ultimately ruled

that all of the records were privileged. Kalish ultimately removed the many boxes of records

from Judge Ward’s chambers and destroyed them. In the process that lasted for four to six

months, Kalish tabbed every page of the records, “sometimes multiple tabs,” writing handwritten notes. Kalish testified that every page of the records was part of the process.

¶ 24 Kalish described the case at bar as a contested liability case where all of the issues in a

medical malpractice case would be difficult to prove, which included (1) professional

negligence in that there was a question of whether there was a deviation from the standard

of care, (2) causation, and (3) damages. Damages were at issue because there was evidence

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that the decedent attempted suicide, which was the reason she was hospitalized to begin with.

That issue severely impacted damages in terms of the decedent’s life expectancy. The breach

of standard of care issue and causation issue were clouded because “there were multiple

drugs that this patient was given on her admission that could cause an anaphylactic reaction”;

therefore, there was a question of whether the benefit in giving the drugs outweighed the

potential risks, side effects, or adverse reactions, and on the other hand, the drugs prescribed

could have been suitable for decedent’s condition of ill being and physiology. There were

additional issues from the decedent’s prior history of previous hospital admissions that

impaired the history that was given on the hospitalization at issue as to whether her history

for the admission was accurate. There were issues in terms of lack of family members who

could provide a detailed accounting of the decedent’s medical history. There were issues

concerning decedent’s relationship with her mother and brother.

¶ 25 The case required legal work from its inception up until it settled, which covered a span

of over three years and five months and the settlement occurred over a “period of time.”

Kalish had many meetings with plaintiff in person, which he estimated as between 10 to 15

times, and numerous telephone calls. Plaintiff was kept advised as to everything important

as it was happening. Kalish had many discussions with Michael also and personallymet with

him two to three times. Kalish opined that plaintiff always appeared to be competent and that

he even traveled to plaintiff’s residence and found it to be neat and orderly. He discussed a

special needs trust with her so she could keep the funds she would receive while she was on

public aid. Kalish contacted a structural settlement expert to talk with plaintiff. Kalish opined

that plaintiff and Michael did not appear to be mentally handicapped and that both he and

plaintiff agreed to the enhanced fees.

¶ 26 Kalish opined that the case was settled and the money disbursed under the Wrongful

Death Act (740 ILCS 180/0.01 et seq. (West 2008)) because the Survival Act (755 ILCS

5/27-6 (West 2008)) damages would have been negligible. Kalish determined that the

settlement was fair and reasonable and that there has never been any evidence that it was not.

This was the first case that Kalish remembers he worked on where his firm requested

enhanced fees. Kalish described his handling of the case claiming he had done an

“extraordinary job.”

¶ 27 The trial court held a hearing on the petition and motion to dismiss on October 19, 2011.

The parties reiterated the arguments made in the petition and the motion, and Kalish restated

parts of his deposition testimony, but neither side introduced new evidence. However, the

record on appeal indicates that plaintiff had the opportunity to introduce new evidence. On

October 25, 2011, the trial court entered a written order denying plaintiff’s section 2-1401

petition. The trial court found that a section 2-1114 motion gives trial courts discretion to

award enhanced fees under the statutory criteria. Using an abuse of discretion standard of

review, the trial court determined that Judge Ward was not clearly wrong when he awarded

the enhanced attorney fees, “even if the consents of Plaintiff and Michael are disregarded.”

The trial court found that Judge Ward was in a better position to evaluate whether or not

SGK went to extraordinary measures to procure a beneficial settlement for plaintiff and

found that it was required to give deference to Judge Ward’s decision.

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¶ 28 ANALYSIS

¶ 29 Plaintiff argues on appeal that the trial court erred in denying its section 2-1401 petition

to vacate the enhanced attorney fees for three reasons: (1) Judge Maddux improperly failed

to hold an evidentiary hearing on the section 2-1401 petition; (2) the petition should have

been granted because plaintiff showed a meritorious claim and due diligence in discovering

the meritorious claim and in filing the petition; and (3) Judge Maddux erred by reviewing the

original grant of enhanced fees under section 2-1114 under an abuse of discretion standard

of review, rather than determining whether the section 2-1401 petition successfully showed

a meritorious claim and due diligence.

¶ 30 I. Standard of Review

¶ 31 A reviewing court will not disturb a trial court’s decision on a section 2-1401 petition

absent an abuse of discretion. Smith v. Airoom, Inc., 114 Ill. 2d 209, 221 (1986). An abuse

of discretion occurs when no reasonable person would take the view adopted by the trial

court. Dowd v. Berndtson, 2012 IL App (1st) 122376, ¶ 24.

¶ 32 II. Evidentiary Hearing

¶ 33 Plaintiff argues that the trial court improperly ruled on the section 2-1401 petition

without conducting an evidentiary hearing. SGK responds by arguing that plaintiff waived

her right to an evidentiary hearing when she did not present additional evidence at the

hearing held on October 19, 2011.

¶ 34 Plaintiff must prove the allegations of her section 2-1401 petitions by a preponderance

of the evidence. Smith, 114 Ill. 2d at 223. When SGK challenges the facts alleged by

plaintiff, a full and fair evidentiary hearing must be held. Smith, 114 Ill. 2d at 223. In Smith,

the petitioner filed its section 2-1401 petition, alleging that the court should vacate a default

judgment entered against the petitioner. Smith, 114 Ill. 2d at 216. The petitioner supported

its allegations with affidavits attached to the petition. Smith, 114 Ill. 2d at 216. The

respondent filed a response to the petition, challenging the petitioner’s claims of due

diligence. Smith, 114 Ill. 2d at 218. The response was supported by counteraffidavits. Smith,

114 Ill. 2d at 218. The petitioner then submitted two supplemental affidavits. Smith, 114 Ill.

2d at 220. The trial court held a hearing on the petition, at which “no other evidence was

introduced; only arguments were heard.” Smith, 114 Ill. 2d at 220. “The matter was taken

under advisement, and the circuit court subsequently entered an order denying the petition

to vacate the default judgment” finding that the petition failed to meet the due diligence

requirement. Smith, 114 Ill. 2d at 220. Based on the petitioner’s failure to present new

evidence at the hearing on the petition, our Illinois Supreme Court found that the petitioner

“waived its right to an evidentiary hearing involving the testimony of witnesses and the

opportunity to cross-examine,” and that “on the basis of the pleadings, affidavits, and

supporting materials in evidence, [our Illinois Supreme Court could not] say that the circuit

court erred” in denying the petition. Smith, 114 Ill. 2d at 223.

¶ 35 Similarly, in the case at bar, the trial court entered an order on July 25, 2011, continuing

plaintiff’s section 2-1401 petition and SGK’s motion to dismiss to October 19, 2011.

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Between the entry of that order and the hearing date, plaintiff obtained the discovery

deposition of attorney Kalish. On the date of the hearing, the parties made arguments

concerning their positions. Plaintiff argued that SGK’s services in the case did not rise to the

level of extraordinary, and SGK reiterated the points Kalish made in his deposition, notably

that Kalish reviewed 25,000 pages of medical records over a period of several months and

that Judge Ward had personal knowledge of the extensive work Kalish put in to the case.

However, neither party called witnesses to testify or submitted new documentary evidence.

At the conclusion of the hearing, Judge Maddux said the following: “We’ve talked about

everything we can on this. I’m going to take this under advisement and I’m going to look at

a couple more things and will let you know in a few days.”

¶ 36 Like in Smith, plaintiff failed to present evidence at the hearing on her petition. Smith,

114 Ill. 2d at 220. Although plaintiff had taken Kalish’s deposition a month prior to the

hearing, and thus had been made aware of SGK’s reasoning regarding why they believed the

enhanced fees were merited, plaintiff failed to present new evidence rebutting or disproving

Kalish’s statements. Therefore, we cannot say that the trial court abused its discretion when

it denied plaintiff’s petition despite plaintiff not presenting evidence at a hearing. Smith, 114

Ill. 2d at 223; Blutcher v. EHS Trinity Hospital, 321 Ill. App. 3d 131, 141 (2001) (stating that

“when a party to a section 2-1401 petition participates in a hearing based solely on the

pleadings, affidavits, and arguments of counsel without requesting an evidentiary hearing,”

the petitioner waives the right to an evidentiary hearing (internal quotation marks omitted)).

¶ 37 III. Content of Petition

¶ 38 To succeed on a section 2-1401 petition, petitioners must “set forth allegations

supporting the existence of a meritorious claim or defense; due diligence in presenting the

claim or defense to the circuit court in the original action; and due diligence in filing the

section 2-1401 petition.” Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 94

(2006). “ ‘The quantum of proof necessary to sustain a section 2-1401 petition is a

preponderance of the evidence.’ ” Paul, 223 Ill. 2d at 95 (quoting Smith, 114 Ill. 2d at 221).

¶ 39 A. Meritorious Claim or Defense

¶ 40 Plaintiff argues that the petition presented the meritorious claim that “a competent

administrator would have recognized that no extraordinary services were performed and

would have challenged the enhanced fee under 735 ILCS 5/2-1114.” The case of Clay v.

County of Cook lists two sets of criteria courts may use in determining whether attorneys

performed extraordinary services, and thus are entitled to enhanced fees under section 2-

1114. Clay v. County of Cook, 325 Ill. App. 3d 893, 902 (2001). First, the Illinois Rules of

Professional Conduct state the following:

“The factors to be considered in determining the reasonableness of a fee include the

following:

(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly;

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(2) the likelihood, if apparent to client, that the acceptance of the particular

employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the

services; and

(8) whether the fee is fixed or contingent.” Ill. S. Ct. R. Prof. Conduct R. 1.5(a)

(eff. Jan. 1, 2010).

See Clay, 325 Ill. App. 3d at 902 (stating that the above criteria “may be utilized in

evaluating fee awards under the provisions of section 2-1114”). Illinois courts have also used

a similar set of factors to determine the reasonableness of attorney fees including: “ ‘the skill

and standing of the attorneys employed, the nature of the case, the novelty and difficulty of

the issues involved, the degree of responsibility required, the usual and customary charge for

the same or similar services in the community, and whether there is a reasonable connection

between the fees charged and the litigation.’ ” Clay, 325 Ill. App. 3d at 902 (quotingChicago

Title & Trust Co. v. Chicago Title & Trust Co., 248 Ill. App. 3d 1065, 1072 (1993)).

¶ 41 Plaintiff argues that the facts of the case do not indicate that SGK adequately satisfied

these criteria. Specifically, she argues that SGK did not keep records detailing the time and

labor its attorneys expended while handling the case, neither side took depositions during the

pendency of the case, defendants did not file affirmative defenses, and the case settled before

going to trial. Plaintiff argues that the case “settled in routine fashion” and did not involve

a novel or difficult issue.

¶ 42 Plaintiff attached the following to its petition: (1) plaintiff’s petition for letters of

administration of decedent’s estate; (2) the court order declaring plaintiff an heir of

decedent’s estate; (3) the complaint at law; (4) the release and settlement agreements; (5) the

petition to settle the action; (6) Judge Ward’s order granting settlement; (7) Julia Mayes’

petition to be appointed Michael’s guardian; (8) the letters of office appointing Julia as

plenary guardian of Michael’s person and estate; (9) the probate court’s order appointing

Michael a guardian ad litem; (10) the guardian ad litem’s initial report concerning Michael;

(11) Dr. Shaw’s medical evaluation of plaintiff; (12) Dr. Shaw’s written report admitted in

the probate division; (13) the order appointing a guardian for plaintiff as a disabled person;

(14) the agreed order appointing a plenary guardian of the estate and limited guardian of the

person of plaintiff; and (15) the probate division’s order allowing the Public Guardian to

contract with outside counsel in plaintiff’s case. None of these attachments addressed the

factors enumerated in Clay. Plaintiff did not attach any affidavits to its response to SGK’s

motion to dismiss the petition, nor was there any expert testimony or other evidence to show

that SGK was not entitled to an enhanced fee. Plaintiff did attach Kalish’s deposition and a

supplemental report by Dr. Shaw, in which he opined that plaintiff’s developmental delay

had been present since birth.

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¶ 43 By contrast, SGK attached an affidavit by attorney Kalish to its motion to dismiss the

petition, in which he described reviewing the 25,000 pages of medical records, and in making

notes on every page to support his objections through the use of the privileged material.

Furthermore, in his discovery deposition, which was attached to the pleadings, Kalish

testified to the many ways in which the services SGK provided to plaintiff were

extraordinary. Kalish testified that the nature of the issues in the casemade proving deviation

from the standard of care, causation, and damages very difficult. Damages were at issue

because there was evidence that the decedent attempted suicide, which was the reason she

was hospitalized to begin with. That issue severely impacted damages in terms of the

decedent’s life expectancy. The breach of standard of care issue and causation issue were

clouded because “there were multiple drugs that this patient was given on her admission that

all could cause an anaphylactic reaction”; therefore, there was a question of whether the

benefit in giving the drugs outweighed the potential risks, side effects, or adverse reactions,

and on the other hand, the drugs prescribed could have been suitable for decedent’s condition

of ill being and physiology. There were additional issues from the decedent’s prior history

of previous hospital admissions that impaired the history that was given on the

hospitalization at issue as to whether her history for the admission was accurate. There were

issues in terms of lack of family members who could provide a detailed accounting of the

decedent’s medical history. There were issues concerning decedent’s relationship with her

mother and brother.

¶ 44 Kalish testified that he spoke with plaintiff frequently about the progress of the case. He

also testified to spending months and hundreds of hours reviewing 25,000 pages of medical

records for the purpose of preparing a privilege log. The privileged medical records were

related to decedent’s mental state and history of suicide attempts, which defendants could

use at trial and would have had a negative impact on the damages plaintiff could recover. As

a result of Kalish’s efforts, the trial court ordered the medical records privileged, and without

that finding, the value of the case would have been substantially diminished. When the case

settled, plaintiff received a significant damage award. Kalish further testified that, because

he performed an in camera review of the medical records, in Judge Ward’s conference room

and chambers, Judge Ward was personally aware of the amount of time he spent reviewing

the records. At the hearing on the petition, plaintiff did not present any evidence to disprove

Kalish’s affidavit or deposition testimony.

¶ 45 Although plaintiff provided evidence regarding her inability to consent, she provided no

evidence refuting that SGK performed extraordinary services. A party’s inability to give

consent is not one of the enumerated factors courts use in determining whether or not an

attorney performed the extraordinary services necessary to receive enhanced fees. Clay, 325

Ill. App. 3d at 902; Ill. S. Ct. R. Prof. Conduct R. 1.5(a) (eff. Jan. 1, 2010); Chicago Title &

Trust, 248 Ill. App. 3d at 1072. Since the only evidence plaintiff presented was immaterial

to the trial court’s determination that SGK was entitled to an enhanced fee, plaintiff did not

show a meritorious claim. As a result, we cannot say that Judge Maddux abused his

discretion in denying plaintiff’s petition.

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¶ 46 B. Due Diligence

¶ 47 “If the petitioner fails to allege the existence of a meritorious [claim or] defense, the

petition is properly denied, and due diligence need not be addressed.” Rockford Financial

Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 327 (2010). Since we cannot say that the trial

court abused its discretion with regard to plaintiff’s failure to prove the existence of a

meritorious claim, we need not address whethershe was diligent in discovering the claim and

filing her petition.

¶ 48 C. Trial Court’s Review of the Petition

¶ 49 Plaintiff argues that Judge Maddux improperly reviewed the section 2-1401 petition,

treating it like a review of Judge Ward’s grant of enhanced fees under section 2-1114 rather

than as a section 2-1401 petition. In Judge Maddux’s order, he cited to Clay and Madalinski

v. St. Alexius Medical Center, 369 Ill. App. 3d 547 (2006), which states that trial courts have

discretion in granting enhanced attorney fees under section 2-1114 and that reviewing courts

use the abuse of discretion standard of review when evaluating disputes about fees pursuant

to section 2-1114. Judge Maddux concluded that Judge Ward’s order was “not clearly

wrong” and that he must “give deference to Judge Ward’s decision, as he was in a better

position to truly determine whether SGK went to extraordinary measures in procuring

[p]laintiff a beneficial settlement.” Judge Maddux did not state whether or not he found that

plaintiff presented a meritorious claim and satisfied the due diligence requirements. Plaintiff

argues that since Judge Maddux failed to mention the meritorious claim and due diligence

requirements of a section 2-1401 petition, his ruling was in error. We may affirm on any

basis that we find in the record, even if our reasoning is different from that of the trial court.

People v. Carrera, 394 Ill. App. 3d 368, 373 (2009).

¶ 50 We do not find this argument persuasive. In his written order, Judge Maddux relied on

Clay, which is pertinent to the assessment of enhanced fees. The Clay case provides two sets

of factors trial courts may use to determine whether or not to grant enhanced fees pursuant

to section 2-1114. Clay, 325 Ill. App. 3d at 902. In determining whether plaintiff presented

a meritorious claim that SGK was not entitled to enhanced fees, Judge Maddux had to

examine the facts of SGK’s representation of plaintiff and the law concerning when

enhanced fees are merited. Judge Maddux had before him plaintiff’s section 2-1401 petition,

SGK’s motion to dismiss the petition, Kalish’s affidavit attached to the motion, plaintiff’s

response to SGK’s motion, and Kalish’s discovery deposition. Judge Maddux also presided

over the hearing at which plaintiff and SGK argued the points made in their various filings.

Utilizing the evidence before him in the record and the enhanced fee factors articulated in

Clay, Judge Maddux could analyze plaintiff’s arguments in light of the evidence concerning

whether or not SGK provided extraordinary services. Judge Maddux came to the conclusion

that Judge Ward’s decision to grant enhanced fees was “not clearly wrong.” In effect, Judge

Maddux found that plaintiff did not present any evidence that SGK was not entitled to the

enhanced fee, and found that the record supported SGK’s grant for the enhanced fees.

¶ 51 Based on the evidence in the record, our conclusion would not change even if we were

to review Judge Ward’s award of fees under an abuse of discretion standard, instead of

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plaintiff’s petition under section 2-1401. Plaintiff presented no evidence related to any of the

factors enumerated in the Clay case. Clay, 325 Ill. App. 3d at 902. SGK, on the other hand,

submitted evidence relevant to the “ ‘time and labor required, the novelty and difficulty of

the questions involved,’ ” “ ‘the amount involved and the results obtained,’ ” and “ ‘the

nature and length of the professional relationship with the client.’ ” Clay, 325 Ill. App. 3d

at 902 (quoting Ill. S. Ct. R. Prof. Conduct R. 1.5(a)(eff. Jan. 1, 2010)). SGK’s evidence was

also relevant to “ ‘whether there is a reasonable connection between the fees charged and the

litigation.’ ” Clay, 325 Ill. App. 3d at 902 (quoting Chicago Title & Trust, 248 Ill. App. 3d

at 1072). All of this evidence is relevant to determining whether SGK engaged in

extraordinary services on behalf of plaintiff, and, by extension, whether plaintiff’s claim that

SGK was not entitled to enhanced fees was meritorious. We find that plaintiff’s claim was

not meritorious because plaintiff failed to present sufficient evidence to show that SGK was

not entitled to enhanced fees.

¶ 52 CONCLUSION

¶ 53 For the above reasons, we cannot find that the trial court abused its discretion when it

denied plaintiff’s section 2-1401 petition. Plaintiff was given a hearing at which she could

have presented witnesses, and she failed to do so. Plaintiff did not present any evidence

relevant to the factors courts examine when deciding whether attorneys are entitled to

enhanced fees, and thus could not show by a preponderance of the evidence that SGK was

not entitled to enhanced fees.

¶ 54 Affirmed.

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